Patterson v. Horsefly Irr. Dist.

• Decision Date: 08 June 1937
• Citation: 157 Or. 1,69 P.2d 282
• Parties: PATTERSON et al. v. HORSEFLY IRR. DIST. et al. [*]
• Court: Oregon Supreme Court

69 P.2d 282

157 Or. 1

PATTERSON et al. v. HORSEFLY IRR. DIST. et al. ^[*]

Supreme Court of Oregon

June 8, 1937

In Banc.

Appeal from Circuit Court, Klamath County; Arthur D. Hay, Judge.

Action by Grace C. Patterson and husband against the Horsefly Irrigation District and others, and Dorothy Eyers. Nonsuit as to defendant Dorothy Eyers was granted during the trial, and from a judgment for plaintiffs, the remaining defendants appeal.

Reversed and remanded for further proceedings.

William Ganong, of Klamath Falls, for appellants.

J. H Carnahan, of Klamath Falls, for respondents.

BAILEY Justice.

The defendants Horsefly Irrigation District, a quasi-public corporation, and Irl Davis and Henry Schmor, directors of said district, have appealed from a judgment rendered against them and in favor of Grace C. Patterson and J. G. Patterson her husband, awarding recovery to the Pattersons, plaintiffs for damages to their land and for loss of crops and loss of use of a barn and root cellar. The third director of the defendant district, J. L. Sparretorn, died prior to the commencement of this action. All the above claims of damage are predicated on the alleged negligence of the defendants in the construction, operation, and maintenance of the district's irrigation ditches, and the raising of a dam.

In December, 1931, the plaintiffs acquired 160 acres of land within the Horsefly Irrigation District in Klamath County, Or., described as the southeast quarter of the northwest quarter, the northeast quarter of the southwest quarter, and the west half of the southwest quarter of section 20, township 39 south, range 11 east, W. M. The tract includes 120 acres in the southwest quarter of section 20 (all of that quarter section except the southeast quarter thereof), and the remaining 40 acres lie immediately north of the northeast quarter of said quarter section.

Water for the district is furnished by Lost river, which flows in a southwesterly direction past the plaintiffs' land, at the northwest corner of the southwest quarter, bordering it for approximately three hundred feet. To the west of plaintiffs' property, distant about one-fourth of a mile, is the Harpold dam in Lost river. The irrigation ditches are supplied with water by a pumping plant on Lost river about nine hundred feet above the dam and some five hundred feet west of plaintiffs' premises.

Three ditches, almost parallel, have been constructed by the district along the sidehill above plaintiffs' property, all of which ditches cross the southwest corner of plaintiffs' tract. The uppermost ditch, which is nearest the southwest corner of the tract here involved, was built in 1928 and abandoned in 1932. The middle ditch, so designated because it lies between the other two ditches, was built in 1918; and the Horn or lower ditch was built and first used in 1923. The latter two ditches are still in use, and at the time the upper ditch was abandoned in 1932 some of the supply of water formerly carried by it was transferred to and thereafter carried by the other two ditches.

The Patterson ranch slopes over twenty feet from the level of Horn ditch to the level of Lost river. The soil is underlaid with a thick stratum of impervious material known as hardpan, at depths ranging from six inches to more than three feet. The ground through which the ditches are constructed is rocky, sandy, and porous. In some places the ditches have been excavated down to a chalk base. The Horn ditch is built on a grade of approximately one foot drop in three thousand feet.

Across the northwest quarter of the southwest quarter of section 20 is a slough connecting with Lost river at a point where the river borders the plaintiffs' land. A few feet distant from the junction of the slough and Lost river the plaintiffs, at a cost of some $1,500, built in the fall of 1933 a combination barn and root cellar. From this cellar a ditch was dug to the river. At the time the barn was built the plaintiffs knew that the defendant district was contemplating raising the level of the water in Lost river.

In the spring of 1934 the district raised the Harpold dam, thereby raising the water in Lost river several inches, over sixteen inches, according to plaintiffs' testimony, and according to that of the defendants, not more than five inches. The plaintiffs claim that this action on the part of the defendants resulted in raising the water in Lost river above the level of the floor of the root cellar, causing said floor to become and remain wet and muddy.

This action was instituted by Grace C. Patterson as sole plaintiff. Upon the trial of the case it developed that her husband, J. G. Patterson, owned the tract of land with her, and he was therefore made a party plaintiff. In addition to the above-named defendants, Dorothy Eyers, secretary of the district, was made a party defendant. Nonsuit as to her was granted during the trial. No error is assigned with reference to the action of the court in these particulars.

The gravamen of plaintiffs' first cause of action is that the defendants, during the years 1932 to 1934, inclusive, permitted seepage, overflow and escape of water from the middle and lower ditches to and upon plaintiffs' land, which, augmented in the year 1934 by the defendant's raising the water of Lost river, completely destroyed 33 1/2 acres of plaintiffs' property and damaged the remainder of the tract, including the combination barn and root cellar. The carelessness and negligence of the defendants consisted largely in their failure to construct the irrigation ditches with sufficient grade to permit the proper flow of water therein; lack of necessary repair and maintenance of said ditches; failure to clean the ditches; permitting the growth therein of vegetation variously described as tule, flags, and cattails, thereby impeding the flow and raising the water in said ditches and increasing the seepage therefrom; and the further failure of the district to construct toe, or waste, ditches immediately below the main ditches.

Raising the dam in Lost river, according to plaintiffs, raised the water table under their land and prevented the proper drainage of said land into the river. The resultant seepage caused the soil of the above-mentioned 33 1/2 acres to become saturated with alkali to such an extent that the expense of reclaiming it and making it available for agricultural purposes is prohibitive. The remainder of their 160 acres, plaintiffs contend, was injured, although to a less degree, by seepage; and the entire tract was greatly lessened in value because the 33 1/2 acres alleged to have been totally destroyed comprise an irregularly shaped area near the center of the tract, so that plaintiffs' remaining tillable land is rendered difficult and expensive to cultivate and use.

The second cause of action is based upon the total loss of crops on plaintiffs' land for the years 1932, 1933, and 1934, after the plaintiffs had "plowed, prepared, ditched and checked the cultivable lands of said ranch and had planted valuable crops of oats, rye, barley, potatoes and other farm produce," due to the alleged acts of negligence of defendants hereinabove mentioned. Since the defendant Schmor did not take office as a director until January, 1933, the trial judge eliminated from the consideration of the jury all damage to the crops suffered by the plaintiffs prior to 1933.

The defendants in their third amended answer denied all the acts of negligence charged against them. They admitted that they raised the water in Lost river, but at no time more than four inches above the level of prior years; that 33 acres of the land were worthless, but that the same had been of no value for farming purposes for many years prior to the commencement of the action; that there was a failure of crops for the years referred to in the complaint, but that such failure "was caused by careless handling thereof by plaintiffs' tenants and his [their] failure to care for them in a husbandlike manner"; and that the ditches were built on sloping ground through an area in places underlaid with chalk.

The appellants' brief contains twenty-six assignments of error. Three of the assignments have reference to the pleadings. Many of them refer to alleged errors in the introduction of testimony and the refusal of the court to admit other evidence. Several of the assignments have to do with exceptions taken to the giving of certain instructions and the refusal to give other instructions requested, and the denial of the motions of the directors for nonsuit and for a directed verdict.

The first assignment of error is based upon the denial by the court of defendants' motion to strike from the files the first cause of action, on the ground that the same contained two causes of action not separately stated, in that the damage suffered from seepage was a matter of trespass on the case, whereas that part of the first cause of action covering the raising of Lost river was in trespass. As we construe this initial pleading, the damage to plaintiffs' land did not result solely from the seepage or from the raising of the level of the river, but was due to a combination of both. It is impossible to segregate the injuries to plaintiffs' land caused by the various acts of negligence charged to the defendants.

There is included in the defendants' first amended answer what is designated as a fifth further and separate answer and defense to plaintiffs' complaint. It is therein alleged that the defendant district has for several years "immediately last past been in an impoverished condition and has had no money with which it could build or provide drainage facilities for any lands on [in] said district, and has been unable to borrow any such...